Tucker Carlson recently made fun of some Supreme Court justices because they didn’t seem to have sufficient mastery of the ‘facts’ regarding COVID to make the right decision about whether one of President* Biden’s vaccination mandates should be allowed to stand.
But deciding constitutional questions is not something that requires a lot of scientific or technical or even political knowledge. What it requires is the ability to read something like this,
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
and answer a question like this,
Which of the powers enumerated above includes the power to force a privately-owned business to require its employees to undergo an irreversible medical procedure as a condition of continued employment?
The answer, of course, is ‘none of them.’ And that answer doesn’t depend at all on how many kids have been hospitalized, which variant of a virus is more dangerous, whether deaths attributed to a particular cause are going up or down, and so on.
Constitutional questions are nearly always like this — basically, reading comprehension questions. They’re the kinds of questions you’d find on the SAT, the GRE, and the LSAT. The kinds of tests that Supreme Court justices need to be pretty good at passing in order to get to where they are.
But that’s not what the justices are doing when they hear cases. They’re not deciding, based on the words of the Constitution, whether something is or isn’t consistent with those words.
They’re formulating policy — deciding, on the basis of their superior knowledge and wisdom about even the most arcane and abstruse topics, what is best for everyone. The Constitution, at this point, is not even considered during this process — something that becomes apparent when you read transcripts of the oral hearings.
This is why nine justices and two solicitors spent nearly four hours discussing a question that anyone who reads at an eighth-grade level should be able to answer in less than four minutes.
There’s a word for what they do: parenting.
But the worst part of all this is that almost no one seems to seriously entertain the idea that they should be doing anything different. That includes people like Tucker Carlson, who is complaining, not that Supreme Court justices are acting as our parents, but only that they’re misinformed parents.
Think about what ‘rights’ a child has in the context of the family he grows up in. He doesn’t have any, does he? The parents make the rules, and he can obey the rules, or get punished.
Similarly, when we let the Supreme Court act as our parents, we have the rights of children. Which is to say, no rights at all.
